In R (Leighton) v Lord Chancellor (2020) EWHC 336 (Admin), Cavanagh J considered allegations including breaches of the PSED under Section 149 of the Equality Act 2020 and of Article 6 of the ECHR or Article 14 of the ECHR in conjunction with Article 6.
PSED/ECHR Articles 6 & 14
February 21st, 2020 by James Goudie KC in Human Rights and Public Sector Equality Duty
Unjustified Enrichment
February 21st, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Vodaphone v OFCOM (2020) EWCA Civ 183, the Court of Appeal has held that assessment of a claim for restitution, under the principle in Woolwich Equitable BS v IRC (1993) AC 70, that a public authority could not retain a fee collected without lawful authority, did not involve consideration of any counterfactual situation.
Vicarious Liability
February 21st, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Haringey LBC v FZO (2020) EWCA Civ 180, the Court of Appeal held that the Council, which was the employer of a teacher, was vicariously liable for the teacher’s acts in grooming and sexually abusing a 13-year old pupil during his school years and thereafter, but in the teacher’s private time and not at school. The Court addressed not only vicarious liability, but also limitation, “consent” (conditioned consent, resulting from a grooming process, was not true consent), and causation.
Appropriation of Allotment Land
February 19th, 2020 by James Goudie KC in Land, Goods and ServicesOn 13 May 2019 this Bulletin noted the decision in R (Adamson) v Kirklees MBC, in which an allotment holder’s claim succeeded, on the basis that the land had been appropriated for use as allotments, within Section 8 of the Allotments Act 1925.
Investigation and Decision
February 17th, 2020 by James Goudie KC in Decision making and ContractsUddin v London Borough of Ealing, UKEAT/0165/19/RN, concerned the dismissal of the Claimant by reason of misconduct. One of the issues arose from the fact that the complainant who alleged inappropriate sexual behaviour towards her by the Claimant had withdrawn a complaint to the police, but the Council’s manager, who took the decision to dismiss, who knew that the complaint had been made, was not told by the Council’s investigating officer that the complaint had been withdrawn. The EAT held that the fact that the investigating officer, who did know the complaint had been withdrawn, did not pass this on to the disciplinary decision maker, rendered the dismissal unfair, applying Royal Mail v Jhuti (2019) UKSC 55, on the reason for the dismissal, to the reasonableness of the dismissal decision: see Judge Auerbach in the Ealing case at paragraphs 71-78, concluding, with respect to Jhuti in the Supreme Court:-
Overlooking
February 14th, 2020 by James Goudie KC in Land, Goods and ServicesFearn v Tate Gallery (2020) EWCA Civ 104 raises important issues about the application of the common law cause of action for private nuisance to overlooking from one property to another, and the consequent invasion of privacy of those occupying the overlooked property. The Court of Appeal held that (1) mere overlooking is not capable of giving rise to a cause of action for private nuisance: paragraphs 74 and 85; and (2) there is no sound reason to extend the common law tort of private nuisance to overlooking in the light of ECHR Article 8: paragraph 95.
Rating List
February 13th, 2020 by James Goudie KC in Council Tax and RatesWhen should contiguous units of property occupied by the same occupier be entered on the non-domestic rating list as a single hereditament, pursuant to Section 64(3ZD) of the Local Government Finance Act 1988, as amended, and the Rating (Property in Common Occupation) etc Act 2018?
Neighbourhood Development Plan (“NDP”)
February 12th, 2020 by James Goudie KC in Planning and EnvironmentalIn R (Wilbur Developments Ltd) v Hart District Council (2020) EWHC 227 (Admin) Lang J helpfully summarises (1) the legislation on NDPs: paras 5-18; (2) the NPPF: paras 19-21; (3) the Planning Practice Guidance: paras 22-24; (4) the limitations upon a challenge to a decision of a local planning authority approving recommendations for a NDP or to an Examiner’s Report: paras 63-72; (5) the materiality of a planning decision in relation to the same land: paras 77-79; and (6) “reasonable alternatives” for the purposes of the SEA Directive and a Strategic Environmental Assessment: paras 106-109.